Genders & Partners
We are the oldest law firm in South Australia, established in 1848. We obtained the highest ever award for personal injuries in South Australia for one of our clients and have been involved in four of Australia's largest claims for personal injuries. Proud member of:
|
Latest News!
Did You Know ... ? Free Lunch ... ? A cheap (or free) Will may be far more costly than you might think. Some Trustee companies offer free Wills on the condition that they are named as Executor to your estate. This means that they can charge a percentage of your overall estate to administer it - frequently this is thousands of dollars more than a solicitor would charge for the same service.Genders & Partners Any adult person of sound mind can create a variety of legal documents setting out their wishes and directions in advance of certain conditions being met. These documents are called advance directives.For an advance directive to be legally valid, the person making it must be mentally competent to understand the nature and intention of the document. He or she must also understand the consequences of completing and signing the document, and must do so without any coercion, pressure or influence by others. Mental Incapacity is defined in the Guardianship and Administration Act 1993 SA as:- the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of:- any damage to, or illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.  WHAT IS AN ADVANCE DIRECTIVE? In South Australia there are a number of legally recognised advance directions. Currently these are:- 1. A Will - which only has legal effect once the person who makes it dies. 2. Enduring Power of Attorney 3. Enduring Powers of Guardianship 4. Medical Power of Attorney 5. Anticipatory Directions The documents 2 - 5 above are sometimes referred to as Living Wills (ie, expressed wishes and/or directions which are activated to make decisions for a person who is incapacitated, but only have legal effect while that person is alive.)  What is a Living Will? An Enduring Power of Attorney is a legal document that allows you to choose a person to make legal and financial decisions for you and to sign other legal documents on your behalf. This is normally used when a person becomes mentally or physically incompetent, but it must be prepared and signed before that person becomes incompetent. For further information, see Enduring Power of Attorney. A Medical Power of Attorney is a legal document that allows you to designate an agent (usually a relative or a close friend) to make health care decisions for you if you should become either physically or mentally unable to make such decisions for yourself. This document may allow your medical agent to make a treatment decision for you if you become comatose, incompetent, or otherwise mentally or physically incapable of communication. For further information, see Medical Power of Attorney. An Enduring Power of Guardianship is a legal document that allows you to choose a person to make decisions for you which may not be covered by an Enduring Power of Attorney and a Medical Power of Attorney ie for matters relating to where you live, what non-medical care you receive, etc. For further information, see Enduring Power of Guardianship. An Anticipatory Directive is a legal document that allows you to tell doctors and hospital in advance that you do not want to be kept alive on support systems if there is no hope of a recovery to a normal life. If you desire that your life not be artificially prolonged in the event of a terminal illness, you should consult with a solicitor to have a directive to physicians prepared for you. It may also be desirable to inform your physician of your wishes and to provide him or her with a copy of the directive. Failure to sign a directive may result in difficulties for your family in carrying out your wishes with respect to terminating artificial life-sustaining procedures. These Living Will documents, together with a valid Will, will make life much easier for your spouse, children, other relatives and close friends should you become incompetent or die. Without these important documents, the loved ones you leave behind will not only have to deal with their grief, but also with unnecessarily complicated legal matters.  WHAT IS AN ENDURING POWER OF ATTORNEY ? This document allows a person to appoint someone they know and trust to make important decisions about financial, property and related legal matters. This authority can be activated straight away or only if and when the person who makes it loses mental competence. It is a document by which you authorise another person or persons to act for you during your lifetime in respect of your financial affairs. Most people like to have what is called an Enduring Power of Attorney as it continues to operate in the event that you later become mentally incapacitated after, for example, an accident or suffering a stroke or becoming senile. By signing a Power of Attorney you do not lose control over your affairs while you are able to manage them, and you can place limitations on your attorney which vary according to your requirements, but most people execute an unrestricted Enduring Power of Attorney. However, for obvious reasons you have to be careful who you appoint as your attorney, who must be somebody you can trust.  WHEN SHOULD I SIGN A POWER OF ATTORNEY? Immediately. It can be just as important to have a Power of Attorney as a Will, as the unexpected can happen at any time. You cannot sign a Power of Attorney after you become of unsound mind. If for any reason you become incapable of handling your affairs and a Power of Attorney is not in place, a costly application to the Supreme Court may be involved or the appointment of a person to act on your behalf made by the Guardianship Board. The person appointed may not be someone you would want and payment of commissions and other expenses could be involved.  OTHER RELEVANT INFORMATION ON ENDURING POWERS OF ATTORNEY : Your attorney does not have the right to make decisions about your medical treatment or about looking after you. A Medical Power of Attorney and an Appointment as a Guardian are necessary. There is no stamp duty payable. You do not need to register the Power of Attorney at the Lands Titles Office unless it is needed to be used for dealings in land or shares. If your attorney is acting for you, involving, say, dealings with banks or companies in which you may have shares, the Power of Attorney document will need to be produced to the bank or company. The attorney must agree to act for you as you cannot make someone your attorney against his or her wishes. You can appoint one or more persons to act as your attorney. If you appoint more than one person you can authorise any one of them to act in their sole capacity, or you can require two or more to sign before anything can be done. An attorney cannot make a Will for you, sign affidavits for you, or give evidence in Court for you.  WHO CAN I APPOINT AS MY ATTORNEY? You should only appoint an adult person you can trust to look after your interests. Such people could include your spouse, your adult children, your relatives or perhaps close friends. While it is wise to appoint someone you believe to be honest and have common sense, it is not necessary for your attorney to have legal or accounting skills as your attorney can always seek professional assistance if necessary.  RESPONSIBILITIES OF YOUR ATTORNEY Your attorney must keep full and proper records of everything done for you. Your attorney must act in your best interests. If your attorney acts improperly he or she may be personally liable for any loss caused and may even be found guilty of a criminal offence. Your attorney cannot stop acting for you if you become of unsound mind except with the permission of the Supreme Court. The responsibilities and general legal requirements relating to Powers of Attorney are set out in the Powers of Attorney and Agency Act.  ENDING A POWER OF ATTORNEY You can end (revoke) your Power of Attorney at any time while you are of sound mind. A further document needs to be prepared and signed and a copy sent to your attorney and to any place with which your attorney has had dealings, such as a bank, a company in which you may have shares or perhaps the Lands Titles Office (where a special form is required). An Enduring Power of Attorney will be effective throughout your life, unless revoked by you. The Power of Attorney ceases upon your death, at which time the terms of your Will come into force.  WHAT IS AN ENDURING POWER OF GUARDIANSHIP ? This document allows a person to appoint someone they know and trust to make important personal decisions such as choice of accommodation, relationships with others, holidays and all medical treatment decisions, should mental competence be lost in the future. It is a document by which you authorise another person or persons to act for you as your guardian during your lifetime. This means that the person that you appoint may exercise all the rights at law that a guardian has, and if you do not have a medical agent, can exercise the rights of a medical agent in respect of your medical treatment. We recommend that a medical agent can only be comprehensively appointed under a Medical Power of Attorney because:- the definition of medical treatment in the Guardianship and Administration Act (which enables the appointment of an enduring guardian) does not include dental treatment; and an appointment of an enduring guardian operates in the event of mental incapacity, where as a Medical Power of attorney operates if you are unable to make decisions about your medical treatment.  IN WHAT CIRCUMSTANCES WOULD I NEED AN ENDURING GUARDIAN? If you, for example, became senile or suffered from Alzheimers disease, your enduring guardian can take the appropriate steps to have you admitted to a nursing home or suitable institution. An Enduring Power of Attorney is not sufficient for this task, as it is limited to your financial affairs. A Medical Power of Attorney may be inadequate because you may not need medical treatment, but just need someone to look after you. The concept of an enduring guardian is to have someone look after your well being when you are unable to do so for yourself because of your mental incapacity. An enduring guardian can only act when you are incapable of making these decisions for yourself because of your mental incapacity.  WHO CAN BE AN ENDURING GUARDIAN? An enduring guardian can be anyone you choose, aged eighteen or older, whom you trust to carry out your wishes. It may be your wife, husband, partner, son or daughter, a member of your family or a close friend. You can have any number of enduring guardians. If you have more than one, we recommend that you choose the order in which they are to be appointed to act for you. Doctors, nurses or any of the staff in hospitals or nursing homes who are looking after you cannot be your enduring guardian. Your enduring guardian must be willing to act for you and must sign a form accepting the responsibilities of an enduring guardian.  WHAT ARE THE OBLIGATIONS OF MY ENDURING GUARDIAN? Your enduring guardian must always act in your best interest and as far as possible act in the way that you would if you were still of the appropriate mental capacity. Your enduring guardian should, as far as possible, ascertain your wishes before acting for you. Your enduring guardian should make a decision which is the least restrictive of your rights and personal autonomy. Back to Wills Index WHAT IF I DO NOT HAVE AN ENDURING GUARDIAN? If you do not have an enduring guardian, and the need arises for someone to be appointed as your guardian, this will involve an application to the Guardianship Board for the appointment of a guardian in respect of your affairs. This will involve expense and delay at a time when your family will be concerned about your welfare.  CAN I CANCEL THE APPOINTMENT OF AN ENDURING GUARDIAN? Yes. A separate form needs to be signed to achieve this, and copies sent to your enduring guardian.  TO WHOM SHOULD I GIVE A COPY OF AN ENDURING GUARDIAN APPOINTMENT? Your enduring guardian should have a copy as should your doctor.  WHAT IS A MEDICAL POWER OF ATTORNEY ? A Medical Agent is appointed under a Medical Power of Attorney to make medical treatment decisions for a person should he or she become unable to make these decisions for themselves. An Anticipatory Direction does not require the appointment of a proxy or substitute person. It provides a way to record a person's wishes and directions about end of life decisions which must be acted upon by those providing care. It is a document by which you authorise another person to make medical decisions for you when you are not capable of making them yourself. A Medical Power of attorney appoints a person known as a medical agent to act for you to make sure that your wishes about your medical treatment are carried out. Your Medical Power of Attorney operates only when you are not capable of making a decision for yourself about your medical treatment.  WHO CAN BE MY MEDICAL AGENT? A medical agent can be anyone you choose, aged eighteen or older, whom you trust to carry out your wishes. It may be your wife, husband, partner, son or daughter, a member of your family or a close friend. You can have any number of medical agents but only one can act for you at a time and you must choose the order in which they are to act for you in your Medical Power of Attorney. Doctors, nurses or any of the staff in hospitals or nursing homes who are looking after you cannot be your medical agents. Your medical agent must be willing to act and to sign a form in which the medical agent acknowledges the obligations placed on the medical agent. A medical agent must be a person you trust, and who can make a decision at what may be a difficult time.  WHAT CAN MY MEDICAL AGENT DO FOR ME? Your medical agent can say yes or no to medical treatment. However your agent cannot: Refuse food or water for you. Refuse treatment to ease your pain or distress. Refuse treatment that could result in you becoming well enough to make up your own mind to tell your doctor what you want. Assist you to commit suicide. Assist you to commit voluntary euthanasia.  CAN I TELL MY MEDICAL AGENT HOW I WISH TO HAVE MY TREATMENT ADMINISTERED? Yes. If you are over eighteen, you may give what is called an advance direction on how you wish to be treated if you are in the terminal phase of a terminal illness, or in a persistent vegetative state. You can write down whether you want life sustaining treatment or not. You can make an advance direction even if you do not have a medical agent, although most people will appoint a medical agent and give an advance direction at the same time. Your medical agent and your doctors must follow your directions in your advance direction.  WHAT HAPPENS TO ME IF I DON'T HAVE A MEDICAL AGENT? If you are unable to make your wishes known, then your doctor has the right to give you life saving treatment, provided: The treatment is needed to save your life or your health. Where possible, another doctor has examined you and agrees that you need such treatment.  HOW WILL DOCTORS KNOW IF I HAVE A MEDICAL AGENT OR HAVE MADE AN ADVANCE DIRECTION? Until a central registry is established by the Government, you will need to give a copy of your Medical Power of Attorney to your General Practitioner and treating doctor, and give a copy to each of your attorneys.  CAN I ALTER OR CANCEL A MEDICAL POWER OF ATTORNEY? Yes. A further document needs to be prepared and signed and sent to your medical agent/attorney.  |
